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United States v. Dennington

August 21, 2009

UNITED STATES OF AMERICAN
v.
DUSTAN DENNINGTON



The opinion of the court was delivered by: McLAUGHLIN, Sean J., District J.,

MEMORANDUM OPINION

After a federal search warrant was executed at his residence, the Defendant, Dustan Dennington, was indicted and charged with receiving/attempting to receive and possessing/ attempting to possess computerized images of minors engaging in sexually explicit conduct. Presently pending before me is the Defendant's motion to suppress all evidence found during the search of his house and computer as well as statements that he made to law enforcement officers in connection with that search. This court has subject matter jurisdiction by virtue of 18 U.S.C. § 3231. For the reasons set forth below, the motion will be denied.

I. BACKGROUND

The search at issue was conducted pursuant to a warrant obtained by Special Agent James W. Kilpatrick of U.S. Immigration and Customs Enforcement ("ICE"). The warrant sought authority to search the Defendant's residence for instrumentalities, fruits, and evidence of violations of 18 U.S.C. §§ 2252 and 2252A. The warrant attached and incorporated a lengthy list of items to be seized, including (among many other things), computer(s), computer hardware, computer software, computer related documentation, computer passwords and data security devices, videotapes, video recording devices, video recording players, and video display monitors that may be, or are used to: visually depict child pornography or child erotica; display or access information pertaining to a sexual interest in child pornography; display or access information pertaining to sexual activity with children; or distribute, possess, or receive child pornography, child erotica, or information pertaining to an interest in child pornography or child erotica.

(See Search Warrant Attachment A [62-3] at ¶ 1.)

The central issue in this case is whether the Government established probable cause to support a search of the Defendant's computer. In applying for the warrant, Agent Kilpatrick submitted an affidavit detailing information which the Government had obtained about the Defendant from three separate sources, discussed below.

The Philadelphia Investigation

The first source of information outlined in Agent Kilpatrick's affidavit is information that was obtained in connection with an investigation in the Philadelphia area concerning the activities of one Chad Frank. On September 30, 2003, ICE agents executed search warrants for two residences tied to Frank as well as one warrant pertaining to Frank's email accounts with America Online. The warrants were the result of an extensive investigation into Frank's involvement in child exploitation activities. Videotapes were discovered during the execution of these warrants which depicted Frank sexually abusing minors.

The ICE investigation revealed Frank's involvement in organizing informal "Boy Lovers" meetings for the purpose of meeting and attempting to establish relationships with boys. According to Agent Kilpatrick's affidavit, the term "Boy Lover" or "BL"*fn1 is "a label chosen by men with a physical, emotional, and psychological attraction to prepubescent boys, who do not believe that loving relationships with boys are damaging, so long as the interests of the boys are respected." (See Kilpatrick Affidavit [62-3] at ¶ 20 n. 1.) The investigation also revealed Frank's involvement in soliciting pictures of boys and girls engaged in sexual activity and in offering to take photographs of children being abused according to the tastes of other pedophiles. Eventually, Frank was indicted for conspiring to produce, receive, and distribute child pornography, producing child pornography, receiving and distributing child pornography, and possessing child pornography. Following his conviction he was sentenced in the Eastern District of Pennsylvania to an aggregate term of imprisonment of 420 months.

During the pendency of his case, Frank was furloughed for the purpose of cooperating with law enforcement officials by communicating online with other individuals he knew to be sexually interested in children. Among those with whom Frank communicated was the Defendant, who used the internet moniker "weatherboy" and whom Frank identified as a member of Boy Lover. According to Agent Kilpatrick's affidavit,

24. Frank further advised agents that DENNINGTON had traveled from Erie, Pennsylvania to Philadelphia, Pennsylvania for a Boy Lover gathering, held and organized by FRANK in June or July of 2001 at a Howard Johnson's hotel. During this gathering, an individual known as TJ (terkey jerky) surreptitiously videotaped the sexual exploitation of a minor. The minor, age nine (9), was identified by law enforcement and has undergone psychological therapy. However, the minor has been unable to provide details of the encounter. CHAD FRANK has indicated that he believes that DUSTAN DENNINGTON has a copy of the video made by TJ of the sexual encounter with the nine (9) year old boy.

25. FRANK also advised that DENNINGTON has a YF (young friend) who at the time FRANK was furloughed was approximately twelve (12) years old. FRANK indicated that DENNINGTON's YF is his cousin Ryan, LNU.

(Kilpatrick Affidavit [62-3] at ¶¶ 24 and 25.)

The Albany Investigation

The second component of information forming the basis for Agent Kilpatrick's probable cause showing concerns the activities of one Thomas Pidel in the Albany, New York region. The latter information, in turn, was uncovered during the course of an investigation in New Jersey of "Regpay," a third-party billing and credit card aggregating company, which led to the discovery of tens of thousands of purchases of child pornography occurring in the first half of 2003 in association with certain websites.

Agent Kilpatrick's affidavit explains that, in September of 2003, the ICE Cyber Crimes Center forwarded to ICE field offices a list of subscribers to various child pornography websites. One of the subscribers to a particular child pornography website, www.sunshineboys.com, was identified as Pidel, who was then residing in Pine Hill, New York. Following his arrest in January of 2004, Pidel admitted to sexually molesting his nine year old nephew, producing a videotape of them engaging in sexually explicit conduct, and then knowingly distributing the same over the internet.

Ultimately, Pidel was indicted by a federal grand jury in the U.S. District Court for the Northern District of New York for various offenses related to the sexual exploitation of children, including the production, receipt and possession of child pornography. Pidel subsequently entered a guilty plea and provided substantial cooperation to law enforcement authorities relative to the investigation of other individuals engaged in the sexual exploitation of children.

As part of this cooperation, Pidel disclosed his involvement with other "Boylovers," which included contact through on-line chat rooms and meetings or gatherings where boys were molested. According to Agent Kilpatrick's affidavit, Pidel disclosed the following information to law enforcement:

a) A group of "Boylovers", [sic] including PIDEL, who had met through the Internet using the chat rooms "boyloversunited" and "boycuddles", [sic] had camped at Indian rock campgrounds in New Jersey, during the last week of Summer 2003. Some of the adults present fondled boys during this camping trip.

b) The "Boylovers" celebrated Thanksgiving 2003 at PIDEL's house in Pine Hill, New York. PIDEL stated that several members had sex with boys during this gathering.

c) PIDEL told agents of other "boyloversunited" "meets" that took place between August 2003 and January 2004. One meet was at a Hampton Inn in Detroit. On the way home from Detroit, the boylovers visited Niagara Falls. Another meet was held at a Super 8 Motel in Hartford, Connecticut.

(Kilpatrick Affidavit [62-3] at ¶ 31.) Through a forensic examination of Pidel's computer, law enforcement officers were able to confirm that the Thanksgiving "boylovers" meeting occurred at the Belleayre Hostel in Pine Hill, New York from November 14-16, 2003, and that approximately ten men and several boys attended the meeting.

As a result of the information provided by Pidel, several seizures and/or arrests were made relative to offenses involving the sexual exploitation of minors. According to Agent Kilpatrick's affidavit, these included the following:

a) On September 9, 2004, ICE agents in Albany New York executed a federal search warrant at the residence of EDWARD CARNES, 251 Congress street, Troy, New York 12180 and seized 3 suspected child pornography DVD's found secreted in the ceiling of CARNES' bedroom.

b) On September 20, 2004, ICE agents in Newark, New Jersey arrested ROBERT PELLE for possession of child pornography and for traveling across state lines to engage minors in sexual activity. After waiving his Miranda rights, PELLE provided ICE agents with incriminating statements regarding his possession of images containing child pornography and the molestation of his thirteen-year-old adopted son. Additionally, PELLE admitted that he is currently engaged in a Boylover organization in which he has allowed other men to engage his son in sexual activity.

c) On September 22, 2004, ICE agents in New York City arrested PATRICK SZYMANSKI of Brooklyn, New York for interstate travel with intent to engage in a sexual act with a juvenile.

d) On September 28, 2004, ICE agents in Newark, New Jersey conducted an interview of XXXXX [Victim's name excised by VersusLaw], of XXXXX, XX [City and State excised by VersusLaw]. XXXXX [Victim's name excised by VersusLaw] waived his Miranda rights and gave consent for three computer hard drives to undergo forensic examination.

(Kilpatrick Affidavit [62-3] at ¶ 33.)

Insofar is the Defendant is concerned, Agent Kilpatrick's affidavit alleges that Pidel provided the following information:

34. During an interview with ICE agents on October 21, 2004, PIDEL disclosed information about two individuals with whom he had contact regarding the trading of child pornography and the molestation of children. PIDEL indicated that one of the individuals, with screen names "weatherboy", [sic] "weatherfuck" and "weatherbitch", [sic] resided in the Erie, Pennsylvania area. PIDEL also told agents that "weatherboy" a/k/a "weatherfuck" frequently used Yahoo instant messenger to chat. They met through the chat room "boylove". [sic] PIDEL further stated that "weatherboy" is not gay but likes boys and was close with his then twelve year old cousin, Ryan LNU. According to PIDEL, "weatherboy" is employed and owns a house. "Weatherboy" has been to PIDEL's house.

35. PIDEL stated that "weatherboy" has a young friend (YF), a boy with whom a Boylover shares a relationship, named Ryan, LNU who at the time was 13 years old. PIDEL believes that "weatherboy" is molesting Ryan, LNU. PIDEL also advised that "weatherboy" sells nude images on his web site, www.weatherboy.org. and may also provide "special interest photographs" at additional costs.

(Application and Affidavit for Search Warrant [62-3] at ¶¶ 34 and 35.)

Agent Kilpatrick's affidavit explains that a search was conducted of Pidel's residence in January 2004, which led to the seizure of computers and the extraction of Pidel's Yahoo instant message chat logs. Multiple instant message chats were found to have occurred between Pidel and the Defendant between August 22, 2003 and January 8, 2004. The content of these messages confirmed the Defendant's interest in boys under the age of 14 and included graphic descriptions of his on-going sexual relationship with his then13-year old cousin Ryan.

The Erie Investigation

The third component of information forming the basis for Agent Kilpatrick's probable cause showing involves an investigation undertaken in Erie, Pennsylvania concerning the Defendant's on-line activities. This aspect of the investigation was performed primarily by Jessica Lynn, a detective assigned by the Erie County Detectives Bureau to investigate internet and computer related crimes against children.

On July 5, 2006, Agent Kilpatrick met with Detective Lynn for the purpose of enlisting Detective Lynn's assistance in the investigation of the Defendant's suspected online child exploitation activities. The following day, Detective Lynn created an undercover online profile of a 54-year old male interested in 7 to 10 year old boys. Detective Lynn then used her undercover persona to join the website "http://www.weatherboy.org," which was known to be hosted by the Defendant. Upon joining the website, Detective Lynn discovered that "http://www.weatherboy.org" was a pay site where one could view naked pictures of the Defendant. The website also offered made-to-order pornography.

On July 6, 2006 Detective Lynn received an email from the Defendant regarding a new posting on his website. Detective Lynn emailed the Defendant that same day and inquired how she could view the images. She also used the internet search engine Google to run a search of the term "weatherboy" and discovered that "weatherboy.org," the Defendant's website, is described as depicting a "young boy who jerks off on camera and webcam as well as nude photos". [sic] (Kilpatrick Affidavit [62-3] at ¶ 41.) Detective Lynn subsequently made contact with the Defendant via Yahoo instant messenger on July 7, 2006 and was informed by the Defendant that the images and videos on weatherboy.org were of himself and no one else.

As part of her investigation, Detective Lynn also accessed the Defendant's Yahoo group, located at "http://groups.yahoo.com/group/weatherboy." On this site, Detective Lynn observed numerous photos posted by members of the website depicting the members' genitalia. The Defendant's Yahoo group website also featured a link, posted by an individual using the moniker "weatherfuck," to the Yahoo group "geeks'n'glasses'n'nerds," which is located at "http://groups.yahoo.com/group/ geeksnglassesnnerds." The latter group is described as "For the appreciation of nerdy and geeky boys. Especially wearers of glasses and red haired boys". [sic]

As part of her investigation, Detective Lynn became a member of "http://groups. yahoo.com/group/geeksnglassesnnerds" on July 10, 2006. Thereafter, she was able to observe numerous images of suspected minor males exposing their genitalia, which had been posted by the members of the site. Detective Lynn copied to a disc nine images which she felt depicted minors engaged in a lascivious display of their genitalia. The disc was supplied to the U.S. Attorney's Office and forwarded to a pediatric urologist for the purpose of determining whether any of the images depicted minors. The pediatric urologist found it "highly likely" that five of the images involved minors. (Kilpatrick Affidavit [62-3] at ¶ 46.)

Thereafter, a federal grand jury subpoena was issued to Yahoo Inc. for subscriber information regarding the email account "dustan@weatherboy.org," the Yahoo identity "weatherfuck," and the home page "http://www.weatherboy.org." The subpoena also sought information concerning the sponsor of the "geeksnglassesnnerds" group. Although Yahoo was unable to provide any information as to the "geeksnglassesnnerds" group or the domain "www.weatherboy.org," it was able to ...


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